Gov. Brown Orders Ban on Vaping Products

October 8, 2019

Governor Kate Brown on Friday, October 4th, issued Executive Order 10-09 directing the Oregon Heath Authority (OHA) and the Oregon Liquor Control Commission (OLCC) to enact an emergency temporary ban on the sale of flavored vaping products.  This ban includes cannabis vape products as well as nicotine vape products.  The order calls for a 180-day ban on all flavored vaping products under the emergency rulemaking authority of the OHA and OLCC.

The Executive Order lasts for calls for the state agencies to develop a plan for warning labels, ingredient disclosures, product safety testing, and a campaign to discourage vaping.
The OHA and OLCC are further ordered to develop legislation proposals for:
The permanent ban of all flavored vaping products;
Disclosure of all ingredients in vaping products;
Increasing the regulatory oversight of the vaping products and industry; and
Clarify and increase the OHA’s authority to take action when harm or risk to the public health
is present.

The Order calls for the establishment of a Vaping Public Health Working Group (Group) to advise the Governor and the OHA and OLCC on the issues around vaping.  The Group will include a member from the cannabis industry.

The ban is not in existence as of this writing, as the OHA and OLCC have to write and adopt emergency rules first.  It is not clear how all-encompassing the ban will be, as “flavored vaping products” is not defined by current administrative rule.  However, “flavor” is considered an additive under OLCC rules, by is not defined further.  As everyone is aware, terpenes are added to cannabis products including vape products to increase or enhance the taste.   The question for the OLCC quickly became whether they would limit the ban to artificial flavors not derived from cannabis or whether they will decide in the short term to err on the side of caution and ban any added flavors.

The OLCC provided an answer on Friday.  “We will act quickly on the Governor’s directive to address this growing public health crisis,” said Steve Marks, OLCC Executive Director.  “The OLCC will utilize the real-time findings of public health officials here in Oregon and across the country as they continue their investigation into the cause of the vaping respiratory illness outbreak.  We’ll let scientists guide us as we contemplate taking additional actions with a measured approach.”

The OLCC Commission will act on temporary rules proposing to ban licensed marijuana retailers from selling any cannabinoid (marijuana and hemp) products containing any flavor, including non-marijuana terpenes.  In this interpretation the OLCC does not include terpenes derived from marijuana as a “flavor.”  The temporary rule will also prohibit licensed processors from manufacturing or distributing those same products.

However, the OLCC could still be under pressure to err on the side of protecting the public.  Public health officials have not come up with a definitive reason(s) people are becoming ill and dying from vape products.  If the OHA and OLCC could still ban all added flavors, including cannabis derived terpenes from cannabis vape products.

All cannabis businesses, from growers to processors to retails, should provide knowledgeable and succinct comments to the OHA and OLCC on why cannabis derived terpenes are safe.  Further, they should pay close attention to the language of the proposed bans.  If the language is threating to your business model, immediately contact the Governor’s Office as well as your state representative and senator.

When the Working Group is up and running, cannabis businesses need to pay close attention to its activities and recommendations.  Those meetings will be open to the public.
Our office will be keeping a close eye on the ban as it moves forward, as well as the activities of the Working Group and any legislative proposals from the OHA and OLCC.

The Governor’s Executive Order is here:
The Governor’s press release concerning on her Executive Order is here:

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